1 Agenda for 8th Class Admin –Slide handouts –Name plates out Discovery –Review of Scope –Work Product –Experts –Intro to Sanctions

2 Assignment for Next Class FRCP 26(g), 30(c)-(d), 37 Yeazell Phillips Handout (from last class) A Civil Action, pp Questions to think about / Writing assignment for Group 5 –Yeazell p. 510 Qs 1-5 –Questions on Phillips (next slide) Questions to think about / Writing Assignment Group 6 –Questions on A Civil Action (Slide 4)

3 Questions on Phillips 1)In Phillips v Manufacturers Hanover Trust, what rule, if any, did defendant’s counsel violate? Be sure to consider FRCP 11, 26(g), 30(c),30(d), 37(a)(4), 37(b) and 37(d) and explain why each rule was or was not violated. Note that the Rules have been amended several times since 1994, so the reasoning in the opinion may no longer be valid. 2)For each rule that you think the defendant’s lawyer violated, what is the sanction? Are sanctions mandatory or discretionary? 3)Did the magistrate judge make the right decision in Phillips v Manufacturers Hanover Trust? If you were a law clerk to Judge Francis what would you have advised him to do? 4)What, if anything, should the plaintiff’s lawyer in Phillips v Manufacturers Hanover Trust have done differently? 5)If the plaintiff’s lawyer asked the district court judge to review the magistrate judge’s decision, is the district court judge likely to affirm the magistrate judge’s decision

Questions on A Civil Action –Explain how Schlichtmann got information to build his case. What discovery devices did he use? What methods other than discovery did Schlichtman use to get information? –Explain what happened on pp Why did Cheeseman and Frederico object when Schlichtmann asked Love whether he was concerned when he found out that the wells were contaminated? Why didn’t they instruct Love not to answer? Why did Schlictmann ask these questions? –Explain what happened at “the woodshed”? What rules had Schlichtmann violated which led to the woodshed? Why does Shlichtmann say he’s “sorry Judge Skinner wasn’t a party to the agreement“? (pp. 222 & 226) What sanction(s) did the judge impose? Why was the woodshed so important? –If you were Schlichtman, how would you have handled the settlement negotiation with Facher differently? (pp ). Why do you think Schlichtman acted as he did? 4

5 Discovery: Scope FRCP 26(b)(1). Any non-privileged matter relevant to claim or defense Relevance – Information is relevant if it helps prove or disprove a claim or defense –Need not be determinative Hit and run accident. Plaintiff says offending car was yellow. Fact that defendant owns yellow car is relevant –Sufficient that reasonably calculated to lead to admissible evidence Limitations –Proportionality. 26(b)(1) Amount at stake, relative access to info, resources, importance to merits, burden/expense versus benefit –Privilege. 26(b)(1) attorney-client, doctor-patient, self-incrimination –Special rules for work product and experts. 26(b)(3), (b)(4). –Annoying, embarrassing, oppressive. 26(c)(1) –Court may issue protective order. 26(c)(1)

6 Work Product Work Product 26(b)(3) –No discovery of “documents and tangible things prepared in anticipation of litigation or for trial … [unless] substantial need” –Designed to protect lawyers notes from discovery But maybe broader?

7 Work Product Questions –Briefly summarize Hickman –What discovery device, if any, did Fortenbaugh use to secure statements from the survivors? –If petitioner sent the tug owners interrogatories requesting detailed summaries of any witness statements, would such discovery be barred by the reasoning in Hickman? Would it be barred by FRCP 26(b)(3). –PP. 495ff Q1, 3, 4b-d, 5

8 3 Kinds of Experts Expert who will testify at trial –Heightened discovery –FRCP 26(a)(2)(A). Disclosure of name of testifying expert –FRCP 26(a)(2)(B). Testifying expert must prepare report and report must be disclosed –FRCP 26(b)(4)(A). Opposing party may depose testifying expert Non-testifying expert, hired in anticipation of litigation or to prepare for trial –Treated like other work product –FRCP 26(b)(4)(D). Non-testifying expert, hired in anticipation of litigation or to prepare for trial, is shielded from discovery Unless “exceptional circumstances” 26(b)(4)(D)(ii) Experts not hired in anticipation of trial –Subject to discovery like ordinary witnesses –E.g. engineer who designed product which may be defective; doctor who examined patient for treatment (not for litigation purposes) –Disclosure of facts and opinions, 26(a)(2)(D) But not as extensive disclosure as required of testifying experts

9 Questions on Experts Briefly summarize Thompson and Chiquita –Incorporate into your summaries of Thompson and Chiquita answers to p. 502 question 1 499ff Qs 1-4; 502ff Qs 2-3. –Note that 503 Q3 should refer to 26(b)(4)(B), not 26(a)(2)(B). How would you argue that Chiquita was wrongly decided as a matter of textual interpretation and/or policy? Suppose plaintiff has lung cancer which he thinks might have been caused by exposure to asbestos. Plaintiff’s lawyer has a doctor extract 10 lung samples, which she then sends to 10 pathologists. 9 say the lung cancer was caused by smoking, but the 10 th says it was caused by asbestos. The lawyer discloses the 10 th pathologist as one who will testify at trial, but says nothing about the other 9 to the defendant. Can defendant’s lawyer find out that plaintiff consulted 10 pathologists? Can she find out their identities? Can she depose the other 9? Why is this important?

10 Discovery Sanctions I Rule 11 does not apply to discovery. See 11(d) FRCP 26(g). Very similar to Rule 11, except applies to written aspects of discovery –Discovery requests, responses, or objections must be signed by lawyer –Disclosure is complete –Requests, responses, or objections are warranted by law or non-frivolous argument to change the law, not for improper purpose, not unreasonable or unduly burdensome –Sanctions are mandatory. May include fees to opposing counsel FRCP 30(c)-(d). Depositions –In general there are two sets of lawyers in a deposition Lawyer taking the deposition Lawyer defending the deposition –Lawyers can object in deposition, but can only instruct deponent not to answer “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion to the court.” 30(c)(2)

11 Discovery Sanctions II Depositions (continued) –30(d)(2). Sanctions on person who “impedes, delays, or frustrates” deposition –30(d)(3). May terminate or suspend deposition to make motion to judge to limit deposition FRCP 37(a) motion to compel –If opposing party refuses requested discovery –If granted, court must award attorneys fees FRCP 37(b). Discretionary sanctions for failure to obey court order –Can be severe, including dismissal, default judgment, or contempt (imprisonment)

12 Discovery Sanctions III Lots of other sanctions provisions –37(c) Sanction for failure to disclose, supplement, or admit Does not apply to depositions –37(d) failure to respond to discovery requests Failure to attend deposition Failure to respond at all to interrogatories Failure to respond at all to request for documents or tangible things 26(g) wouldn’t apply because no paper to sign